Art and culture law

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Art and culture law refers to legal aspects of the visual arts, antiquities, cultural heritage, and the art market and encompasses the safeguarding, regulation, and facilitation of artistic creation, utilization, and promotion. [1] Practitioners of art law navigate various legal areas, including intellectual property, contract, constitutional, tort, tax, commercial, immigration law, estates and wills, cultural property law, and international law to protect the interests of their clients. [1]

Contents

While the term "art" can encompass a wide range of creative forms, art law typically concentrates on the realm of fine art or visual arts. [1] Art law is important because it provides the ability to protect the rights of artists, collectors, galleries, and museums. Art law does not only protect individuals but it promotes the creation, preservation, and distribution of art. [2]

Key terms

History

Art law has evolved significantly over the course of the 20th century, with its influence evident in municipal, state, and federal courts. In the United States, although the intersection of art and law is rooted in the U.S. Constitution and the Copyright Clause, which encourages "the progress of science and useful arts" by securing exclusive rights for authors and inventors, little headway was made in the realm of art law until William Howard Taft, convinced Congress to establish the National Commission of Fine Arts. [4]

Following World War II, there was a notable cultural boom, shifting the focal point of the art market from Europe to the United States. This change brought increased attention to American culture, and the American artist was no longer an outsider. Instead, they entered a new era, becoming integrated into the business environment. This newfound prominence highlighted the necessity for legal professionals with a specific focus on matters related to the arts.

Some of the leading art attorneys who have made a deep mark on the field include Judith Bresler, [5] Norman Palmer, [6] and John Henry Merryman.

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Areas of art and culture law

Moral Rights / Droit moral

In the United States, artists’ rights were typically protected under copyright law or the law of contracts. Increasingly, the moral rights of artists, those of ‘a spiritual, non-economic and personal nature that exists independently of an artist’s copyright in’ their work have been coming to the fore, both on the federal and state level. Statutorily, the moral rights of artists in the United States are poorly protected and narrowly enforced; some seemingly substantive claims are dismissed on procedure failure to state a claim, as res judicata or on industrial design grounds. As soon as U.S. artists die, their moral rights vanish. Despite numerous attempts to introduce resale royalty rights in the United States, artists' resale royalty is for the most part collected through self-negotiated contracts (similar to the Siegelaub/Projansky (1971) Contract. [7] See the 1992 and 2013 reports from the Copyright Office that address the subject of resale royalties in general and make reference to private agreements: https://www.copyright.gov/docs/resaleroyalty/usco-resaleroyalty.pdf (see page 70).

Intellectual Property

Copyright is the protection of individuals' creations. A creator is given the exclusive right to reproduce, distribute, and display the work. Trademark protects the use of distinctive logos, symbols and other identifying marks in art. Trademarks protect the owner from unauthorized use by others. They also ensure that the public can easily identify an artwork's source.

Contract Law

Contracts typically govern the terms and transfer of ownership of artworks. They set up the obligations between the artist, gallery and the collector. [2]

Constitutional Law

The Supreme Court's jurisdiction extends to the First Amendment, freedom of expression, oversight of Congressional power under Article 1 Section 8, conflicting lower court rulings on copyrightable subject matter, and the Foreign Sovereign Immunity Act (“FSIA”). Art law cases in the Supreme Court occupy unique socio-political dimensions—as art law impacts a range of legal topics from free speech to art restitution.

Tort Law

Tort law comes into play in cases of fraud or negligence in the art market. For example, if an auction house were to sell a work of art knowing it was inauthentic or without authenticating the piece, it turns out to be a forgery.

Tax Law

The US tax code provides incentives for collectors, galleries, and museums. These include tax deductions for charitable contributions of artworks. There are special tax codes related to the import and export of art.

Commercial Law

Commercial art law encompasses a specialized area of legal practice tailored to the unique needs of artists and collectors in the realm of business and creative assets. Artists and collectors often require tailored legal support in managing their estates, which may comprise valuable works of art. Within the purview of commercial art law, individuals can appoint art executors through their Last Will and Testament, empowering experts with the knowledge to effectively handle and maintain their artistic assets according to their wishes. Furthermore, commercial art law addresses the intricate aspects of copyright, treating it as a distinct property interest that can be conveyed independently from the artwork itself, ensuring that the creative and financial rights of artists and collectors are safeguarded. This legal domain plays a crucial role in preserving and protecting the interests of those engaged in the art world, bridging the gap between artistic expression and commerce.

Immigration Law

The O-1A visa is a temporary work visa for individuals with exceptional abilities or achievements in fields like sciences, arts, education, business, or athletics, supported by sustained national or international recognition. For those in the motion picture or TV production industry (O-1B), a proven history of remarkable accomplishments is required. Additionally, the visa applicant must be entering the United States to engage in work or performances related to their exceptional talents. These visas are initially granted for up to three years and can be extended in one-year increments if the same work continues. [8]

Estates, Trusts, and Wills

There are art lawyers who work on preparing estates for artists and estates for art collectors. In this domain, artists often have unique requirements. For instance, an artist or collector may designate an art executor in their Last Will and Testament, with a specific focus on overseeing the portion of their estate comprising artworks. This art executor would ideally possess the specialized expertise necessary to effectively preserve or handle the artwork as stipulated in the will. Additionally, copyright, as a distinct property interest, may be addressed in a will and transferred similarly to any other property right, separate from the actual artwork. [9]

Cultural Property Law

Cultural property protection encompasses a set of rules and regulations designed to safeguard cultural heritage in its various forms, ensuring its preservation and preventing damage, destruction, theft, embezzlement, or any illicit handling. This protection extends to a range of cultural assets, including "monument protection" for immovable cultural property such as historical monuments, notable architecture, and similar structures. These protections are granted to constructions, buildings, ruins, fortresses, gardens, and more. The rules and regulations governing cultural property protection cover multiple aspects, including access to protection, measures for preventing and legally addressing theft, archaeological site excavation, and the looting or destruction of both natural and man-made cultural sites worldwide. Concurrently, cultural property protection also involves addressing questions related to equitable access to our shared cultural heritage. See for example, the UNESCO, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, No. 11806, 823 U.N.T.S. 231 (Nov. 14, 1970).

International Law

International art law is a specialized legal field that pertains to the intricate and distinctive requirements within the global art community. It addresses the legal needs of artists, collectors, and cultural institutions operating on an international scale. Much like in commercial art law, practitioners in international art law help individuals navigate the complexities of managing estates containing valuable artworks. Additionally, international art law delves into the complexities of cross-border art transactions, ensuring that legal frameworks and agreements are in place to facilitate the international movement of artworks, while also preserving the cultural and financial interests of those involved. [10] This legal discipline serves as a vital bridge between artistic expression and the complex, multifaceted world of international art trade and preservation. [11]

Important art law cases

Cultural heritage cases

Theories

John Henry Merryman (1920–2013) was a pioneer of cultural and artistic property law academia. According to him, there are two paradigms through which art and cultural law can be defined. The first is the subject being independent of its national ties and attracting significance and meaning from the historical or archaeological interest that is generated by human culture. [12] This is idea is legally bolstered by the UNESCO definition of cultural objects which is a close definition of significant objects which attract interest. [13] The second inextricably ties cultural objects to their national heritage which in turn legitimises efforts for their re-patriation (see Elgin marbles, Gweagal shield, Easter island).

References

  1. 1 2 3 Guha, Anne. "Guides: Art Law Research Guide: Introduction & Getting Started". guides.ll.georgetown.edu. Retrieved 2023-11-26.
  2. 1 2 "Art Law: Everything You Need to Know". www.contractscounsel.com. Retrieved 2023-11-26.
  3. "What does it mean? A guide to key terms in art law, Boodle Hatfield (2023)" . Retrieved December 20, 2023.
  4. "Art Law". TheFreeDictionary.com. Retrieved 2023-11-26.
  5. "Honoring Judith Bresler". new York State Bar Association. 2020-07-28.
  6. Herman, Alexander (2016-10-11). "The passing of Norman Palmer QC CBE". The Institute of Art and Law.
  7. "The Artist's Reserved Rights Transfer And Sale Agreement (1971) | Primary Information". primaryinformation.org. Retrieved 2024-11-26.
  8. "Entertainment or Artist Visa | New York City Immigration Lawyer". www.shanescottlaw.com. Retrieved 2023-12-20.
  9. "Estates, Wills, and Trusts | artbizlaw.com" . Retrieved 2023-11-26.
  10. "International art law". Berg & Moll International Lawyers. Retrieved 2023-12-20.
  11. "Art Law in The Supreme Court". Center for Art Law. 2020-12-29. Retrieved 2023-11-26.
  12. John Henry Merryman ‘Two Ways of Thinking About Cultural Property’ The American Journal of International Law Vol. 80, No. 4 (Oct., 1986), pp. 831-853 (23 pages) Cambridge Uni Press
  13. Article 1, The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970.

Many organizations and libraries collect and catalogue art and cultural heritage publications.

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